The Naked Truth - Appearance Discrimination Employment and The L

Asian American Law Journal
Volume 14 Article 6
January 2007
The Naked Truth: Appearance Discrimination,

Employment, and the Law
Ritu Mahajan
Follow this and additional works at: http://scholarship.law.berkeley.edu/aalj
Recommended Citation
Ritu Mahajan, The Naked Truth: Appearance Discrimination, Employment, and the Law, 14 Asian Am. L.J. 165 (2007).
Available at: http://scholarship.law.berkeley.edu/aalj/vol14/iss1/6
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The Naked Truth:
Appearance Discrimination,
Employment, and the Law
Ritu Mahajant
INTRODUCTION
Physical beauty elicits benefits that are more than skin deep. In every
aspect of our lives we are reminded that appearance matters. Evidence
suggests that society tends to attribute to those who are physically attractive
the added qualities of sociability, friendliness, and competence.' The
appropriate standards for appearance are measured and dictated by societal
norms, for which white culture often serves as a reference. Those who do
not measure up to society's norms of aesthetics, appearance, and grooming
are often perceived as lazy, incompetent, and less productive. Not only do
these implicit biases affect social interactions, they also affect one's ability
to obtain employment. Employers often use appearance as a signal of an
employee's qualifications, 2 and even after hiring decisions are made,
employers continue to regulate the appearance of their employees through
dressing and grooming policies.
While such appearance-based decisions are pervasive in the
employment context, under current law it is not illegal for an employer to
consider appearance when making hiring or other employment decisions.
Generally, the only way an aggrieved employee can secure her day in court
is by tying her appearance-based complaint to a category protected by Title
VII, the Age Discrimination in Employment Act, or the Americans with
Disabilities Act. However, because of the manner in which courts currently
examine such claims, these statutes are unlikely to provide adequate relief
for employees who have experienced appearance-based discrimination. The
law's failure to address appearance-based discrimination is problematic
t J.D. 2007, University of California, Berkeley School of Law (Boalt Hall); B.A., University of
California, Irvine. I would like to thank Rohit Mahajan and Saurabh Bhargava for their insightful
comments and suggestions. I would also like to thank Lisa Chin and her entire editing team for all their
hard work.
1. Karen Dion, Ellen Berscheid & Elaine Walster, What Is Beautiful Is Good, 24 J.
PERSONALITY & SOC. PSYCHOL. 285 (1972).
2. Elizabeth M. Adamitis, Appearance Matters: A Proposal to Prohibit Appearance
Discrimination in Employment, 75 WASH. L. REV. 195, 197 (2000).
ASIAN AMERICAN LA WJOURNAL [Volume 14:165
because it serves as a proxy for other forms of discrimination that are

explicitly prohibited by Title VII and often disadvantages minorities and
women who are unable or unwilling to conform to prevailing appearance
norms. Through the combination of novel legal remedies that restructure
how courts evaluate appearance-based policies in the employment context
and prescriptions for broad socio-cultural change, courts can provide
adequate relief for employees who have been subjected to appearance-
based discrimination and combat the damaging effects of such policies.
The remainder of this comment proceeds as follows: Part I briefly
reviews the psychological evidence regarding the pervasive biases
associated with beauty and appearance in our society as well as the cultural
conceptions of beauty. Part II examines the role that appearance plays in
the employment context. Part III discusses why appearance-based decisions
in the employment context are problematic. Part IV reviews cases in which
courts have assessed dressing and grooming policies and hiring decisions
based on appearance, identifies flaws in the courts' legal reasoning as well
as the inadequacies of current legal doctrines, and examines the courts'
inability to effectively address such policies. Part V assesses proposed
alternatives to the current principles governing the resolution of
appearance-based claims.
PART I
APPEARANCE MATTERS
Our society is obsessed with appearance. Both men and women,
recognizing the value of an attractive appearance, constantly strive to
improve their looks. Beyond facial characteristics, society measures
appearance on variables such as grooming, dress, and use of cosmetics.
Indeed in initial interactions, appearance is often used to judge and
compare people. Not only does an individual's appearance tend to
overshadow her other characteristics in forming the basis of first
impressions, it also influences perceptions of the individual's other
attributes.
According to the "beauty is good" stereotype, attractive people are
perceived and treated more positively. 4 In the classic study illustrating this
heuristic, psychologists Kenneth Dion, Ellen Berscheid, and Elaine Walster
asked subjects to match personality traits to pictures of attractive and
unattractive people. In a preliminary study, 100 Minnesota undergraduates
determined the physical attractiveness of each of the pictures.5 However,
how these students measured attractiveness is unclear. The psychologists
found that more socially desirable traits, such as likeability, honesty, and
3. See Dion, Berscheid & Walster, supra note 1.

4. See id.
5. Id. at 286 n.4.
2007] THE NAKED TRUTH
competence, were attributed to the attractive individuals, whereas less

attractive individuals were deemed lazy and unproductive. This "beauty is
good" stereotype has since been replicated in a number of subsequent
studies including teacher evaluations of students,7 simulated jury trials,8
voter preferences in political candidates, 9 and nursing homes.' 0
While there is some uniformity in perceptions of what constitutes a
physically appealing appearance, perceptions of beauty are also shaped by
the culture in which we live." The majority, which is often made up of one
racial or ethnic group, tends to shape the general cultural consensus of
which attributes are considered attractive.12 For instance, in the United
States, the norms of attractiveness have created a culture in which whites
are deemed more attractive than members of other racial groups. Indeed,
according to a 1996 study testing the perceptions of general attractiveness
held by a group of students of differing races, whites were considered the
most attractive racial group.13
PART II
THE ROLE OF APPEARANCE IN EMPLOYMENT
Hiring Decisions
The attributional biases associated with physical appearance are also
pervasive in the employment context. In employment, appearance is part
of the employee's non-verbal communication. Assessment of an
employee's appearance is tied to her attractiveness, which is usually based
simply on the employee's facial features. In addition to facial
characteristics, empirical research addressing the role of appearance in
employment has also focused on grooming, jewelry, hairstyles, glasses,
and clothing.
In employment, a psychological phenomenon, known as the
"halo/horns effect," encompasses the "beauty is good" stereotype. The
"halo effect" operates when an employee is rated positively on one factor
6. Id. at 288-89.
7. See Margaret M. Clifford & Elaine Walster, The Effect of PhysicalAttractiveness on Teacher
Expectations,46 SOc. EDUC. 248 (1973).
8. See Cookie Stephan & Judy Corder Tully, The Influence of Physical Attractiveness of a
Plaintiffon the Decisions of Simulated Jurors, 101 J. Soc. PSYCHOL. 149 (1977).
9. See Michael G. Efran & E.W.J. Patterson, Voters Vote Beautiful: The Effect of Physical
Appearance on a National Election, 6 CAN. J. BEHAV. Sci. 352 (1974).
10. Sidney Katz, The Importance of Being Beautiful, in DOWN TO EARTH SOCIOLOGY 307, 313
(James M. Henslin ed., 1997).
11. Jordan D. Bello, Attractiveness as Hiring Criteria: Savvy Business Practice or Racial
Discrimination?,8 J. GENDER RACE & JUST. 483, 498 (2004).
12. See id. (discussing John M. Kang, Deconstructingthe Ideology of White Aesthetics, 2 MICH J.
RACE & L. 283, 289-91 (1997)).
13. Jie Zhang, Patternsof PhysicalPreference Among Races: A PreliminaryStudy with College
Students, 83 PERCEPTUAL & MOTOR SKILLS 901 (1996).
ASIANAMERICANLA WJOURNAL [Volume 14:165
that in turn influences her ratings on all other factors. 14 The "horn effect"
functions similarly but works against the employee. Thus, an employee's
appearance may influence the employer's overall perception of the
employee, serving as a measure of an employee's abilities and
qualifications.
In fact, empirical evidence suggests that in the context of employment
decision-making, the more attractive a person, the more likely she is to be
hired and the more highly she will be paid. 5 For example, in a study on the
influence of physical attractiveness, dress, and job type, researchers found
that style of dress had a consistent influence on interviewers' perceptions of
employability." A subsequent study established that appropriate dress had
greater impact on judges' evaluations of potential for hire than physical
attractiveness. 7 Moreover, psychology professor Thomas Cash discovered
that raters favored women groomed according to a managerial style; this
includes shorter, simpler hairstyles, hair away from the face, moderate
cosmetics, tailored blouses and jackets, and simple gold jewelry." Men and
women wearing glasses are seen as "relatively intelligent, hardworking,
and successful, but not active, outgoing, attractive, popular, and athletic."' 19
In a study focusing on cosmetics use, researchers discovered that cosmetics
use "positively correlated with perceived attractiveness, femininity, and
,,20
sexiness. Specifically, makeup strengthened sex role stereotypes
associated with traditionally feminine jobs, such as secretaries and teachers,
but had no effect on traditionally non-feminine jobs, such as accountants
and doctors. 2 '
14. Katz, supra note 10, at 308.

15. Lucy M. Watkins & Lucy Johnston, Screening Job Applicants: The Impact of Physical
Attractiveness and Application Quality, 8 INT'L J. SELECTION & ASSESSMENT 76 (2000). Additionally,
attractive people obtain higher wages. According to a study in the United States and Canada using two
broad-based household labor market surveys with interviewers measuring each respondent's physical
appearance in order to examine the effects of personal appearance on an individual's earnings, all else
being equal, physically attractive men and women earned more money than their less attractive
counterparts. Specifically, less-than-average attractiveness resulted in a 7-9% wage loss for workers in
the lowest 9% of attractiveness, while above average attractiveness resulted in a 5% wage gain for
workers in the top 33% of attractiveness. Daniel S. Hamermesh & Jeff E. Biddle, Beauty and the Labor
Market, 84 AM. ECON. REv. 1174 (1994).
16. Kim K.P. Johnson & Mary E. Roach-Higgins, The Influence of PhysicalAttractiveness and
Dress on Campus Recruiters' Impressions of Female Job Applicants, 16 HOME ECON. RES. J. 87
(1987).
17. Ronald E. Riggio & Barbara Throckmorton, The Relative Effects of Verbal and Nonverbal
Behavior,Appearance, and Social Skills on Evaluations Made in Hiring Interviews, 18 J. APPLIED SOC.
PSYCHOL. 331, 346 (1988).
18. Thomas F. Cash, The Impact of Grooming Style on the Evaluationof Women in Management,
in THE PSYCHOLOGY OF FASHION 343 (M. Solomon ed., 1985).
19. Mary B. Harris, Richard J. Harris & Stephen Bochner, Fat, Four-Eyed, and Female:
Stereotypes of Obesity, Glasses and Gender, 12 J. APPLIED SOC. PSYCHOL. 503, 511 (1982).
20. Cathryn L. Cox & William H. Glick, Resume Evaluations and Cosmetics Use: When More Is
Not Better, 14 SEx ROLES 51 (1986).
21. Id. at56.
From an economic standpoint, employers have incentives to hire

based on physical appearance. Just as appearance affects an employer's
judgment about the qualifications of a particular employee, so does it affect2
a customer's perception of the company and its products or services.1
Thus, many employers use appearance-based hiring as a marketing
technique."
Dressingand Grooming Policies

While appearance is relevant to initial hiring decisions, it also plays a
role in the workplace. In order to appeal to customers, enforce social
norms, and ensure that employees conform to the culture of the
organization, employers often regulate employee appearance through
dressing and grooming policies.24 By instituting these policies and
appearance guidelines, employers guarantee minimum standards that
enable them to capitalize on the effects of appearance-related biases.
Beyond catering to consumer preferences and ensuring conformity
within the workplace, employers utilize dressing and grooming policies to
build on commonly learned associations. The color, style, and material of a
certain dress can elicit associations that assist a business in aligning itself
with certain values. 2 ' For example, some suggest that dark colors, like
those worn by police officers, express authority, whereas the color white,6
often worn by hospital employees, conveys purity and cleanliness.1
Uniform dress standards may also indicate that a business values
27
consistency and homogeneity over individual expression.
Of course, dressing and grooming policies can serve important
business-related concerns. Employers frequently use these policies to
ensure safety, maintain the public image of the business, boost employee
morale, and increase productivity. Additionally, such policies are often
imposed to make employees more aware of their roles and reduce
28
differences within the organization.
PART III
PROBLEMS ASSOCIATED WITH POLICIES REGULATING APPEARANCE
While employers are motivated to regulate employee appearance for
both social and economic reasons, appearance-based decisions in the
22. Bello, supra note 11, at 496-97.

23. Id. at 483.
24. See Stacey S. Baron, Note, (Un)lawfully Beautiful: The Legal (De)construction of Female
Beauty, 46 B.C. L. REV. 359, 365, 373 (2005).
25. Katharine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards,
Community Norms, and Workplace Equality, 92 MICH. L. REV. 2541, 2553 (1994).
26. Id.
27. Id. at 2554.
28. Id. at 2554-55.
employment context are problematic on several levels. Appearance

regulations are troubling because they facilitate the judging of employees
based on qualities unrelated to job performance. Beyond their irrelevance
to job performance, appearance regulations reflect certain prejudices, and
adversely affect the individuals against whom they are enforced.29
Irrelevant to Job Performance

Employment decisions influenced by appearance are problematic
when they involve assessments of characteristics that are unrelated to the
actual job at issue.'s While appearance is not relevant to an employee's
ability to perform most jobs, under current law, employers are free to use
such criteria when making hiring decisions." Such policies are "arbitrary,
irrational, and unfair,0 2 as they harm society by affirming certain
appearance-related stereotypes and biases. Furthermore, appearance-based
hiring decisions and grooming policies suggest that appearance is more
important than other more relevant factors, such as "academic, career, or
personal accomplishments," and also perpetuate society's obsession with
looks. "
Express Certain Assumptions and Prejudices

In her article Work Culture and Discrimination, Tristin Green,
Associate Professor of Law at Seton Hall University, identifies work
culture as a source of discrimination and suggests that many of the
problems associated with appearance-based policies stem from cultural and
structural dimensions of the workplace.14 While work cultures delineate
appropriate standards of appearance and behavior, these standards tend to
reflect the dominant group's (i.e., male, white, heterosexual) ideals of
appearance and aesthetics."
The tendency for appearance policies to cater to dominant group
norms must be examined in light of the nature of work culture. Work
culture is essentially a product of social interaction, which is influenced by
a number of cognitive and motivational biases as well as larger
organizational context.3 6 Furthermore, work culture is affected by the
29. Karl E. Kare, For Mary Joe Frug: A Symposium on Feminist Critical Legal Studies and
Postmodernism: Part Two: The Politics of Gender Identity: Power/Dressing:Regulation of Employee
Appearance, 26 NEW ENG. L. REV. 1395, 1396 (1992).
30. Karen Zakrzewski, The Prevalence of "Look"ism in Hiring Decisions: How Federal Law
Should Be Amended to Prevent Appearance Discriminationin the Workplace, 7 U. PA. J. LAB & EP.
L. 431, 434 (2005).
31. Adamitis, supra note 2, at 212.
32. id.
33. Zakrzewski, supra note 30, at 434.
34. Tristin K. Green, Work Culture and Discrimination,93 CAL. L. REV. 623, 646 (2005).
35. Klare, supra note 29, at 1431.
36. Green, supra note 34, at 646-47.
2007) THE NAKED TRUTH
likelihood that individuals favor those with whom they share similarities
and will enforce group boundaries in order to maintain status and power. 37
Green claims:
The predisposition to categorize and stereotype along racial and gender
lines, the need to feel good about oneself and the use of group
membership to serve that need, and the asymmetry of in-group favoritism
and out-group bias depending on one's position of power and individual
desire for social dominance all suggest that work 38 cultures are likely to
develop and persist along racial and gender lines.
In line with Green's argument, one would expect white males, the group
most likely to be in charge of making decisions regarding appearance
standards, to create a work culture that disadvantages women and people of
color.3 9 Nor would it be surprising that employer appearance standards
generally devalue racial, cultural, and religious diversity, often requiring
conformity to white, heterosexual notions of beauty and appearance. 40
RacialAssumptions
In the article, Deconstructing the Ideology of White Aesthetics, John
Kang, Ph.D. pre-candidate in Political Science at the University of
Michigan, argues that as the dominant group in the United States, whites
determine what is beautiful and force their values of appearance, aesthetics,
and grooming on the rest of society. 4a He defines the "ideology of White
aesthetics," as "the belief that the physical racial features of White
Americans are seen as objectively appealing and universally true whereas
the physical racial features of people of color are seen as subjective and
deviant., 42 Racial features include those through which people dress or
express themselves, as well as physical characteristics such as hairstyle,
skin color, nose size, and eye shape.43 While whites, whose aesthetic values
are seen as objective and universal, can exercise preferences in deciding
how to look or express themselves, non-whites must conform to white
standards or suffer the consequences. 4 Kang argues, "[I]f a certain value is
objective and true, a person cannot, idiomatically speaking, 'prefer' to
choose this value. Rather, the person merely deviates from it or adheres to
it."' 45 Thus, non-whites are faced with the decision either to conform to or
37. Id. at 647-48.

38. Id.at 647.
39. Id.at 648.
41. John M. Kang, Deconstructing the Ideology of White Aesthetics, 2 MICH. J. RACE & L. 283,
283 (1997).
42. Id. at 286.
43. Id. at 315,321,333.
44. See id. at 311.
45. Id. at 311-12.
ASIAN AMERICAN LA WJOURNAL (Volume 14:165
46
reject white aesthetic values.
The fact that appearance and grooming regulations are often based on
white norms is further complicated by what Barbara Flagg, Assistant
Professor at Washington University, refers to as the "transparency
phenomenon., 47 Flagg defines this as the "tendency of whites not to think
about whiteness, or about norms, behaviors, experiences, or perspectives
that are white-specific., 48 As a result, whites frequently view the norms
adopted by the dominant culture as race-neutral and fail to acknowledge
how these norms could in fact be specific to one race. 49 Application of the
transparency phenomenon to employer dressing and grooming policies
illustrates that even "neutral" policies may be based on race-specific norms
of white beauty. ° Thus, individuals who do not fit the white, Anglo-Saxon,
protestant model of success in the employment context are likely to "elicit
a negative response to some degree, regardless of whether that response is
conscious or subconscious."'"
The unconscious biases that stem from the transparency phenomenon
have real consequences for minorities. Appearance regulations based on
white norms communicate that minorities and their appearance choices do
not belong in the workplace."
Gender Assumptions
In addition to relying on racial assumptions, appearance regulations
are also based on gender assumptions. Appearance regulations mold gender
consciousness by suggesting that proper men and women should dress and
behave in particular ways.53 Dressing and grooming policies act on
assumptions that reinforce existing gender expectations. For example,
dressing and grooming policies are particularly problematic for women, as
they often reflect patriarchal views about the appropriate role and behavior
of women.14 Appearance choices and dress code enforcement are complicit
in creating gender differences, renegotiating identities, and reinforcing
men's domination of women.55 Appearance regulations maintain the sexual
subordination of women by taking advantage of and repressing expressions
46. Id. at 312.

47. Barbara J. Flagg, "Was Blind, But Now I See": White Race Consciousness and the
Requirement of DiscriminatoryIntent, 91 MICH. L. REv. 953, 957 (1993).
48. Id.
49. See id. at 1012-13.
50. Michelle L. Turner, The Braided Uproar:A Defense of My Sister's Hairand a Contemporary
Indictment of Rogers v. American Airlines, 7 CARDOZO WOMEN'S L.J. 115, 131 (2001).
51. Kenji Yoshino, The Pressure to Cover, N.Y. TIMES MAG., Jan. 15, 2006, at 632 (quoting
JOHN T. MOLLOY, NEW DRESS FOR SUCCESS (1988)).
52. Turner, supra note 50, at 131.
54. Id.at 1397.
55. Id.
of female sexuality; these regulations also punish deviance from male

expectations regarding appropriate female behavior. 16 Through such
regulations, employers capitalize on women's sexuality in order to attract7
customers on the one hand, and restrict female dress choices on the other.
Appearance-based decisions in the employment context tend to "generat[e]
and reinforc[e] beliefs that help sustain a social order founded on the
domination of woman in general and of specific groups of women, such as
lesbians, African American women, and others, in particular."5 8 Judgments
about appearance reflect which members of society are valued and entitled
to control, and this in turn determines social and economic opportunities
and outcomes.
Furthermore, attractiveness requirements, which some employer
appearance policies encompass, disproportionately burden women, as
society's expectations and standards of appearance tend to fall more
heavily on women than men.5 9 Such requirements reinforce stereotypes
about the images of femininity and beliefs about female behavior and
worth, 60 driving many women to spend endless time and energy to
measure up to the ideal form of female beauty. 6 The resulting obsession
with beauty maintains women's secondary status in society by increasing
their vulnerability to forms of male exploitation and dangers associated
with the beauty industry. 62
Adverse Impact on Employees

Individuals express their identities through social practices, including
the choices they make about dress and appearance. 6 ' Dress and appearance
choices communicate certain ideas, values, or beliefs held by an individual
and create meaning. 64 Thus, restrictions on forms of dress and appearance
in the workplace can adversely affect employees by prohibiting forms of
individual expression and can elicit feelings of hurt, anger, and shame
65
among employees when their appearance choices are rejected.
Appearance policies are especially harmful when they are enforced
against minorities and women. Grooming and dressing policies that are
based on white male norms undermine the value of minorities and women
and their appearance choices. 66 Furthermore, appearance practices and
56. Id. at 1398.

57. Id. at 1433.
58. Id. at 1397.
59. Id. at 1421.
60. Id. at 1425.
61. See Baron, supra note 24, 363-64.
62. Id. at 380.
64. Id. at 1409-10.
65. Id. at 1400.
expectations preserve the existing social, political, and economic

domination of subordinated groups. 6' The irony of appearance regulations,
however, is that they give employers unjustifiable amounts of coercive
power, while creating the illusion that employees have a choice in the
matter.68
Appearance policies based on white norms often cause minorities to
internalize these norms and reject those aspects of their identities that do
69
not conform. Minorities seeking greater social legitimacy attempt to
comply with prevailing norms by hiding, masking, or covering traits that do
not conform to white norms and distinguish them from the dominant
group.70 For example, in an attempt to cover traits, minorities are often
careful to present themselves in an "appropriate" manner, speak without a
detectable accent, and use products to attain a look7 2more consistent with
white norms.71 This process can lead to self-loathing.
Dressing and grooming policies profoundly impact those who do not
conform to traditional gender norms. Such policies tend to normalize
gender, to dictate social expectations about social roles, and to penalize
those who refuse to conform. 73 Attractiveness requirements in particular
have destructive consequences for women's economic and social well-
being, as well as their self-esteem.7 4 Pressure to meet standards for
attractiveness pushes women to excessive dieting, eating disorders, and
plastic surgery.75 Furthermore, women's dress and appearance policies tend
to objectify women and are based on presumptions of their inferiority and
incompetence. 76
In his article The Pressure to Cover, Kenji Yoshino, Associate
Professor at Yale Law School, suggests that the quest for conformity leads
non-whites and females to downplay their identities in order to blend into
the mainstream.77 He defines "covering" as the act of minimizing obtrusive
qualities so people focus on an individual's other characteristics. 78 While
exclusions based on race, gender, religion, and sexual orientation are now
uncommon, he argues that a subtler form of discrimination has emerged
that does not target entire groups, but rather "aims at a subset of the group
that refuses to cover, that is, assimilate to dominant norms."7 9 Although
67. Kare, supra note 29, at 1411.

68. Id.at 1432.
69. Turner, supranote 50, at 139.
70. Id. at 140-41.
71. Id.at 140.
72. Id.
74. Id. at 1421.
75. Adarnitis, supra note 2, at 215.
76. Bartlett, supra note 25, at 2547.
77. Yoshino, supra note 51, at 32.
78. Id.
79. Id.at 33.
racism is now rejected and looked down upon, society 8

still responds
negatively to cultural traits associated with certain races. 0
Tristin Green also notes that work cultures that develop along racial
and gender lines cause outsiders to overcome a presumption against fitting
in." Green explains, "Women and people of color in these workplaces
must signal, by conforming to work culture, that they are the exception
rather than the rule."82 Green argues that while victims of discriminatory
work cultures suffer both social and economic harms, even those who
ultimately succeed at fitting in are harmed.8 3 Discriminatory work cultures
force non-whites and women to 84 perform extra identity work and reshape
their identities in order to fit in.
Functions and Consequences of Appearance Regulations
Homogeneity
In the article Law and Economics of Critical Race Theory, Devon
Carbado, Professor of Law and Director of the Critical Race Studies
Concentration at the University of California, Los Angeles, and Mitu
Gulati, Professor of Law at Georgetown University, draw on behavioral
management literature to illustrate that employers have incentives to
promote homogeneity in the workplace.85 Homogeneity is needed to
achieve trust, fairness, and loyalty among employees, and this in turn 86
decreases transaction costs associated with employee supervision.
Evidence suggests that trust, fairness, and loyalty among
87
employees results
in a more productive, cooperative, and open workforce.
While employers have incentives to create a homogeneous workplace,
evidence shows a direct correlation between employers' pursuit of
homogeneity in the workplace and racial discrimination. 88 This occurs
because "homogeneity norms, by their very nature, reflect a commitment to
sameness... and a rejection of difference. 89 Since whites are insiders, and
non-whites are outsiders in most professional settings, the relationship
between discrimination and homogeneity is clear. 90 While one might argue
that current law, which prohibits covert racial discrimination in hiring and
80. Id. at 36.

81. Green, supra note 34, at 648.
82. Id.
83. Id. at 628.
84. Id.
85. Devon W. Carbado & Mitu Gulati, The Law and Economics of Critical Race Theory:
Crossroads,Directions, and a New CriticalRace Theory, 112 YALE L.J. 1757, 1788-89 (2003).
86. Id. at 1789.
87. Id.
88. Id. at 1790.
89. Id.
90. Id.
promotion, prevents employers from pursuing homogeneity in the

workplace, neither anti-discrimination law nor other efforts to increase
diversity effectively hinder employers attempting to attain homogeneity in
the workplace. 9' Carbado and Gulati suggest that employers prefer to hire
non-whites whose racial identities are not prominent and who do not fit
stereotypes associated with their racial group to non-whites whose racial
identities are more evident. 9' In other words, employers look for non-
whites who dress and act in ways that negate stereotypes about their racial
93
groups.
Conformity
Appearance regulations also help employers facilitate conformity to
work culture, which is becoming an increasingly important determinant of
job success. 94 In order to ensure a strong work culture which increases
organizational performance and motivates employees, employers reward
conformity and make efforts to find employees who are likely to fit in. 95
Tristin Green argues that while encouraging employees to commit to
common work norms is not discrimination, the social interactions which
comprise work cultures are likely tainted with the discriminatory biases 96
resulting from work cultures formed along racial or gender lines.
Conformity is an element of every culture, but demands to conform to a
work culture defined along racial or gender lines pose particular problems
for women and people of color. 97
PART IV
FAILINGS IN THE ADJUDICATION OF APPEARANCE
The manner in which courts currently examine dressing and grooming
policies and appearance-based hiring decisions perpetuates many of the
racial and gender biases associated with appearance while leaving little
protection for individuals harmed by such arbitrary policies. Title VII of
the Civil Rights Act of 19649' prohibits employment discrimination based
on race, color, religion, sex, or national origin, and is the vehicle through
which plaintiffs typically challenge employer appearance policies.
However a review of cases involving Title VII challenges to appearance
policies reveals that courts are influenced by an assimilation bias, and thus
require minorities and women to minimize differences and conform to
91. Id. at 1791.

92. Id. at 1792.
93. See id.
94. See Green, supra note 34, at 634.
95. Id. at 638.
96. Id. at 643.
97. Id. at 644.
98. 42 U.S.C. §§ 2000e to 2000e-17 (2006).
cultural norms. 99 As a result of assimilation bias, courts often minimize the

harm associated with appearance policies that affect mutable
characteristics, accord less weight to employee interests by trivializing their
appearance choices as merely matters of personal preference that are easily
changed, and fail to recognize how appearance choices can be tied to one's
racial, gender, and/or religious identity. 00 Acting under the presumptions
that employer regulations promote efficiency and that policies based on
community norms are not discriminatory, courts give substantial deference
to employers' managerial interests and prioritize workplace efficiency over
diversity and personal autonomy.101
Employer appearance policies can also be challenged under the Age
Discrimination in Employment Act ("ADEA"),' °2 which prohibits age
discrimination in employment, and Title I of the Americans with
Disabilities Act ("ADA"),'0 3 which guarantees equal opportunity in
employment for individuals with disabilities. However, it can be difficult to
contest appearance policies under these laws because neither was intended
to address appearance discrimination. Under these two statutes, the only
way to successfully challenge an appearance policy is by demonstrating
that the policy actually functions to discriminate based on age or disability.
Inadequaciesof Current Forms of Title VII Liability

The Civil Rights Act of 1964, a historic piece of legislation, banned
discrimination in public facilities, government, and employment. Title VII
was intended to ensure equal employment opportunity, specifically
prohibiting discrimination based on race, religion, color, national origin, or
sex in the employment context. Since Congress also intended to provide
employers with a certain level of discretion, Title VII does not prohibit all
forms of discrimination.' 4For instance, an appearance policy is not illegal
under Title VII unless the policy implicates one of the protected categories
mentioned above. Even if an appearance policy implicates one of Title
VII's protected categories, the framework of Title VII's two main theories
of liability, disparate treatment and disparate impact, makes it difficult for
employees who challenge discriminatory appearance policies to obtain
relief. 105
99. Carbado & Gulati, supra note 85, at 1822-23.

100. Klare, supra note 29, at 1401-02, 1411.
101. Id. at 1405; Bartlett, supra note 24, at 2541.
102. 29 U.S.C. § 621 (2006).
103. 42 U.S.C. § 12101 (2006).
104. Ken N. Davison, Note, The Mixed-Race Experience: Treatment of Racially Miscategorized
Individuals Under Title VII, 12 ASIAN L.J. 161, 164 (2005).
DisparateTreatment
Courts use the disparate treatment theory to assess a plaintiffs claim
that an employer intentionally discriminated against her because of
membership in a protected class. In order to satisfy her burden of proof
under the disparate treatment theory, a plaintiff must prove that a decision-
maker intended to discriminate and subjected her to a materially adverse
employment action because of her race, color, religion, sex, or national
origin.106 However, because appearance policies are often based on
unconscious biases, a plaintiff will be unlikely to satisfy her burden of
proof since intent to discriminate under this theory usually requires a
showing of conscious bias or purposeful discrimination. 10 7 Even if a
plaintiff succeeds in carrying her burden of proof, courts are likely to
regard an employer's explanation that the plaintiff failed to conform to the
work culture as a legitimate reason for the adverse employment action.
108
DisparateImpact
Disparate impact theory, which courts use to examine employment
practices that are not motivated by discriminatory intent but still have an
adverse impact on members of a protected group, is also an inadequate
avenue of relief for adversely affected employees. Under the disparate
impact theory, a plaintiff must show that the employer "uses a particular
employment practice that causes a disparate impact" on members of a
protected group. °9 However, it is difficult for a plaintiff to prove that a
specific practice has a disparate impact on members of a protected group if
there are not many other employees that are members of the group in
question, if other employees who are members of the group choose to abide
by the employer's appearance policy," 0 or if the plaintiff can comply with
the employer's requirement."' In light of Carbado and Gulati's argument
that employers pursuing homogeneity in the workplace have particular
incentives to hire racially palatable employees, a plaintiff may have
difficulty identifying other employees who are group members and who are
unable or unwilling to comply with predominantly white workplace norms,
including appearance standards." 2 The fact that plaintiffs have difficulty
pointing out other similarly situated group members reveals the courts'
failure to utilize antidiscrimination law to address employment
discrimination based on intra-racial distinctions, "distinctions employers
106. Id. at 656.

107. Id. at 656-57.
108. Id.
109. 42 U.S.C. § 2000e-2 (k)(1)(A)(i).
111. Barbara J. Flagg, Fashioning a Title VII Remedy for Transparently White Subjective
Decisionmaking, 104 YALE L.J. 2009,2027 (1995).
112. Carbado & Gulati, supra note 85, at 1824.
make among people within a particular racial group."" 3

Furthermore, assuming a plaintiff is able to establish a
disproportionate effect on a specific group, proving causation often poses
114
problems because of the subjective nature of the decision at issue. A
plaintiff will usually have difficulty identifying the specific employment
practice that caused the disparate effect." 5 Thus, due to what Green argues
is a failure of courts to view work culture as a source of discrimination, and
the "doctrinal barriers" posed by the disparate treatment and disparate
impact theories, women and people of color are often blamed for their
inability to conform to the demands of work culture.
116
Employer Defenses
Even if a plaintiff succeeds in carrying her burden of proof under the
disparate treatment or disparate impact theory, courts have consistently
upheld appearance regulations that impact race, sex, or religion by
accepting employer assertions that such regulations are necessitated by
business concerns." 7 For example, under the disparate treatment and
disparate impact theories, an employer can assert either that the appearance
policy constitutes a bona fide occupational qualification reasonably
necessary to the normal operation of the job, or that it is job related and
consistent with a business necessity." 8
Under a disparate treatment claim, if the plaintiff establishes a prima
facie case of discrimination, the burden shifts to the employer to present a
legitimate non-discriminatory justification for the employment action.' 9 If
the employer is able to carry this burden, "the burden shifts back to the
plaintiff to prove that the legitimate justification proffered by the employer
is only a pretext for an underlying discriminatory motive."'120 Furthermore,
in disparate treatment cases, employers can use the "bona fide occupation
qualification" defense to justify discrimination against employees or
applicants on the basis of sex, religion, or national origin."' In order to
establish such a defense, the employer must show that the plaintiffs sex,
religion, or national origin would substantially interfere with the
performance of a specific job, that the employee must have a protected
characteristic in order to perform the job properly, and that employing an
individual who does not have that characteristic would transform the nature
113. Id. 1792.

114. Flagg, supra note 111, at 2027.
115. Id. at 2027-28.
117. Id. at 658.
118. Adamitis, supra note 2, at 204.
119. Bello, supra note 11, at 487.
120. Id.
121. Id. at 493-94.
ASIANAMERICAN LA WJOURNAL [Volume 14:165
of the business. 122

In contrast, under a disparate impact claim, if the plaintiff establishes a
prima facie case, the burden shifts to the defendant to demonstrate that the
employment practice satisfies a legitimate "business necessity," meaning
that it relates to job performance or bears some manifest relationship to the
employment in question.' 23 If the defendant establishes a business
necessity, the burden is placed on the plaintiff to offer evidence that the
defendant can implement other available employment practices that would
be comparably effective for its business, but would have less
discriminatory effects. 124
The disparate impact theory may not be an adequate paradigm for
appearance-based claims because the discrimination usually does not stem
from an employer's use of certain subjective requirements, which may
actually be job related and justified by business necessity. Instead, the
discrimination occurs as a result of "the application of that criterion by
members of the white majority according to dominant definitions of the
term." 25 Courts have a great deal of discretion in deciding whether a
proffered business concern is sufficient enough to outweigh the adverse
effects of a discriminatory
26
appearance policy and tend to use this discretion
in the employer's favor. 1
Assimilation Bias
In addition to the doctrinal inadequacies of Title VII's two main
theories of liability, the manner in which courts interpret Title VII when
evaluating challenges to appearance policies is also problematic. Based on
court decisions regarding employer dressing and grooming policies, it is
evident that judges are influenced by an assimilation bias when interpreting
claims brought under Title VII. According to the assimilationist
perspective, plaintiffs challenging appearance policies do not have a
cognizable claim if they have an opportunity to conform to prevailing
norms. 121Courts often refuse to protect plaintiffs from demands to cover
and assimilate to dominant norms if such demands involve mutable
characteristics over which plaintiffs have some control. 28 In essence,
courts treat being a member of a protected group differently from behavior
associated with that group and are less likely to protect individuals from
discrimination based on mutable appearance choices because individuals
122. Id.
123. Griggsv. Duke Power Co., 401 U.S. 424, 431 (1971).
124. Bello, supra note 11, at 492.
125. Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of
Disparate Treatment Theory, 38 HARV. C.R.-C.L. L. REV. 91, 142 (2003).
126. Flagg, supra note 111, at 2021-22.
127. Id. at 2033.
128. Yoshino, supra note 51.
are capable of avoiding discrimination by changing those traits. "9Such an

interpretation fails to recognize the link between covering demands that
implicate race, gender, and individual choice." 3 Appearance choices are
inextricably tied to racial, gender, and religious identity. Consequently
when an employee is subjected to a dressing and grooming policy, she is
faced with the choice of either preserving her racial and/or gender identity
or rejecting it.' 3
However, the immutability distinction is under-inclusive since it does
not provide relief for various forms of impermissible discrimination. 31 2 The
immutability requirement is also problematic as a means of determining
whether an employer has discriminated against an individual on the basis of
one of Title VII's protected categories because it disregards the plain
language and legislative history of the Act, which indicates that "Congress
chose those [protected] categories because they reflect unacceptable
employment standards, not because they were immutable."' 3 3
Beyond the basic appeal of the assimilation idea, Kenji Yoshino
suggests that judges have institutional reasons for promoting
assimilation. 31 4 Fearing the number of suits that would be filed if recovery
for all cases in which individuals were asked to cover were allowed, courts
have decided to protect immutable traits.'35 However, the flaw in the
courts' analyses of these cases is their view of assimilation as a means
through which individuals can avoid discrimination. 3 6 Courts fail to
recognize that "sometimes assimilation is not an escape from
discrimination, but precisely its effect." 11 7 Furthermore, courts often do not
force employers to justify why they are requiring employees to cover.138
Appearance regulations and employer demands to assimilate present a
dilemma for courts: on the one hand, courts are hesitant to intervene as they
do not want to favor some groups over others, but on the other hand, courts
overlook the fact that these sorts of policies reinforce stereotypes and allow
inequality to thrive. 139
Community StandardDoctrine
One explanation for the gaps between what is unacceptable under
Title VII and what scholars and advocates contend should be unacceptable
129. Id.
130. Id.
131. Id.
132. Davison, supra note 104, at 186.
133. Id. at 170.
134. Yoshino, supra note 51.
135. Id.
136. Id.
137. Id.
138. Id.
139. Id.
ASIAN AMERICAN LA W JOURNAL [Volume 14:165
is an excessive judicial reliance on community norms in determining what

Title VII requires.1 40 In particular, courts tend to rationalize dress and
appearance requirements by referring to community standards. Professor
Katharine Bartlett argues that courts are inclined to trivialize the effect of
dress and grooming policies on employees by relying on culture-bound
judgments that reinforce existing prejudices and stereotypes. 141 Such
judgments have less to do with the importance of dress and appearance to
individuals or employers• 142 and more to do with society's dress and
appearance expectations. Thus, according to Bartlett, the manner in
which courts analyze dress and grooming policies is troublesome because
judges make assumptions regarding what should be considered significant
when analyzing these policies
43 without examining the culture in which these
requirements function. 1
The community standard doctrine is also a potential source of
discrimination against bisexuals, lesbians, and gays as members of such
groups are believed to prefer gender-neutral appearance and dressing styles
that undermine traditional expectations about gender and sexuality.'44 For
example, Smith v. Liberty Mutual reveals the courts' failure to provide
protection to individuals who do not conform to established standards of
145
appearance.
In Smith, the court rejected a Title VII discrimination claim based on
effeminacy-the plaintiffs failure to conform to gender norms. 14 6 The
plaintiff's job application was rejected because the interviewer considered
the plaintiff effeminate. 147 However, since the plaintiff was not
discriminated against simply because of his sex, but rather because he
possessed qualities generally characteristic of the opposite sex, the court
held such conduct did not violate Title VII. 148By allowing employers to
discriminate against job candidates who appear effeminate, courts give
their approval to patriarchal and heterosexual notions of gender
construction through appropriate appearance.149
Dress and GroomingPolicies ImpactingRace and Religion

The following cases reflect the manner in which courts assess dressing
and grooming policies that implicate race and religion. In particular, these
cases illustrate the doctrinal limitations of Title VII, the influence of an

141. Id. at 2558.
142. Id.
143. Id. at 2559.
144. Klare, supra note 29, at 1420-21.
145. Smith v. Liberty Mut. Ins. Co., 569 F.2d 325 (5th Cir. 1978).
146. Id. at 326.
147. Id.
148. Id. at 327.
149. Klare, supra note 29, at 1420-2 1.
assimilation bias on courts' interpretation of Title VII, and the courts'

tendency to defer to employer business interests.
Rogers v. American Airlines (S.D.N. Y 1981)

Rogers, an African American female, brought an unlawful
discrimination action under Title VII based on American Airlines'
grooming policy. 15 Alleging that the policy aided the Airlines in
displaying a conservative and business-like image, employees in certain
sectors were prohibited from wearing their hair in an all-braided style. 5'
Although the plaintiff claimed that the policy discriminated against her on
the basis of both her race and gender, the court held that her complaint
failed to state a claim for discrimination under both accounts. 152
The decision was influenced by the fact that the defendant's grooming
policy applied to both men and women as well as employees of all races."'
Because some men have longer hair than women, the court argued that the
policy had a practical effect on men and women alike. 5 4 Even if the policy
did impose different standards on men and women, it would not violate
Title VII because a regulation of this sort only minimally affects job
opportunities. 155 Furthermore, because the policy did not regulate 56
immutable characteristics, it did not impinge on fundamental rights. 1
As to her race discrimination claim, Rogers alleged that the comrow-
braided hairstyle was tied to the culture and history of black women and
held important significance for them. "' Similar to its analysis of the sex
discrimination claim, the court stated that the policy was evenhandedly
applied to members of all races and that the plaintiff failed to claim that the
all-braided hairstyle was worn only or primarily by blacks. 58 Even if an
all-braided hairstyle tends to be associated with a specific race or
nationality, it is a permissible basis for distinctions in the application of
employment practices, as it is a mutable characteristic.59
Citing a case recently upheld by the Fifth Circuit where an employer's
grooming policy was found lawful, the court noted that the allegedly
discriminatory employment practices seemed to have more to do with
running a business than equality of employment opportunity. 160 The court
also implied that American Airlines's need to reflect a conservative and
150. Rogers v. Am. Airlines, Inc. 527 F. Supp 229 (S.D.N.Y. 1981).
151. Id. at 231.
152. Id.
153. Id. at 232.
154. Id. at231.
155. Id.
156. Id.
157. Id. at 231-32.
158. Id. at 232.
159. Id.
160. Id. (citing Garcia v. Gloor, 618 F.2d 264, 269 (5th Cir. 1980)).
business-like image
61
would qualify as a bona fide business purpose for the
grooming policy. 1
Rogers illustrates the court's inability to handle intersectional claims
involving racial and sexual discrimination and its failure to recognize the
cultural significance of comrows for African American women. 16' The
court held that the policy was not discriminatory, as it applied to both
genders and all racial groups, and it did not regulate immutable
characteristics.6 6 However, the court's analysis is unsatisfactory because
neutral policies can still discriminate. While the policy was applied
evenhandedly, it particularly disadvantaged black women by taking away 64
their ability to wear a hairstyle that displays their cultural identity.'
Comrows are historically and culturally tied to African American women
and policies regulating such hairstyles do not have the same impact on
white women as they do on black women." 5 However, the court failed to
see how the employer's policy functioned in a discriminatory manner and
gave more importance to American Airline's business interests
66
than the
adverse effects of the policy on African American women.1
The court's reasoning in this case reflects an assimilation bias that
fails to recognize culturally biased grooming codes as problematic. The
assimilation framework leads courts to take the position that differences
should be minimized and employees facing grooming policies they
disagree with should comply to the extent possible. 16' Focusing on the ease
of compliance with the employer's policy, the court failed to acknowledge68
the impact and message that compliance sends to affected employees. 1
Through this decision, the court accords legitimacy and importance to
certain appearances and racial groups over others. 169
Hollins v. Atlantic Co. (6th Cir. 1999)

Similarly, in Hollins, an African American female brought an action
under Title VII, alleging unlawful disparate treatment on the basis of race
in the application of Atlantic's appearance and grooming standards to
Hollins' hairstyle preferences. 7 0 Hollins was reprimanded for wearing her
hair in "finger waves," allegedly in violation of Atlantic's grooming policy,
which was purportedly implemented for safety reasons. 171 On another
161. Id. at 233.

163. Rogers, 527 F. Supp. at 232.
165. Id. at 133.
168. Id.
169. Id. at 139.
170. Hollins v. Atlantic Co., 188 F.3d 652, 655 (6th Cir. 1999) (en banc).
171. Id.
20071 THE NAKED TRUTH
occasion, five white women wore their hair in the same "ponytail" hairstyle
as Hollins, but only Hollins was reprimanded for her behavior and asked to
seek pre-approval of hairstyles she planned to wear to work. 17 Concluding
that similarly situated employees were treated differently, the court found
that Hollins had raised an issue of fact as to whether Atlantic's grooming
policy was a pretext for its treatment of Hollins and had also established a
prima facie case of disparate treatment.' 73
This case indicates that courts are willing to find unlawful
discrimination based on employer grooming policies when such policies
are applied inconsistently or when adverse action is taken against
employees for behavior not proscribed by the policy. In this case, the
discriminatory application of the grooming policy was quite evident.
Hollins, unlike other individuals who wore similar hairstyles, was the only
employee repeatedly reprimanded for her behavior. 174 Furthermore,
Atlantic admitted that Hollins hairstyle technically fell within the
parameters of the policy, as it was neat, well groomed, and safe, and that
the only reason it was unacceptable was because it was eye-catching and
too different. "' Even though dressing and grooming policies that are
equally applied can adversely impact members of some groups more than
others, it is not likely that the court in Hollins would have reached the same
conclusion had the employer applied the policy equally.
McManus v. MCI Communs. Corp. (D. C. Cir. 2000)

Wandra McManus, an African American woman, brought a claim for
discrimination based on race and personal appearance in violation of the
District of Columbia Human Rights Act ("DCHRA") 1 76 against her former
employer after she was replaced by an individual who she claims "more
typically reflects corporate America."' 17 7 The DCHRA, which prohibits
"discrimination by reason of race, color, religion, national origin, sex, age,
marital status, personal appearance, sexual orientation, familial status,
family responsibilities, matriculation, political affiliation, disability, source
of income, and place of residence or business," is often construed by
looking to cases interpreting Title VII. 17 McManus, who dressed in
African-styled clothing at work and wore her hair in dreadlocks, braids and
cornrows, argued that "because of her choice of clothing and hairstyle, she
represents a subset of African Americans whose claim of discrimination
based on race, coupled with personal appearance, cannot be defeated by
172. Id.
173. Id. at 660.
174. Id. at 660.
175. Id. at 655.
176. McManus v. MCI Commc'ns Corp., 748 A.2d 949, 951 (D.C. 2000).
177. Id. at 957.
178. D.C. CODE §2-1401.01 (2001).
replacing her with an African American whose dress more typically reflects
corporate America."' 79 The court held that McManus did not make out a
prima facie case of racial or personal appearance discrimination because
she failed to show that MCI replaced her with someone outside her
protected class. 8 0 As to her personal appearance claim, which was based
on comments made by her supervisors regarding her appearance, the court
found that the comments made to McManus were not discriminatory, but
rather complimentary.' 8 They included statements such as "That is a pretty
outfit," "Your earrings are interesting," "I like the way you wear your hair
up, because it makes your facial features look better," and "Oh, what kind
of hair style is this, how did they do this?" 1 82 Therefore, the court held that
McManus did not offer tacts sufficient to support such a claim. 83 '
The case raises important issues about intra-racial distinctions,
specifically differences between African Americans who use clothing and
hairstyle to express their heritage and African Americans who dress in a
fashion more typical of corporate America. The court suggests that there
may be instances in which a discrimination claim based on intra-racial
distinctions would be recognized by the law. 8 4 Had there been a stronger
connection between the comments made about McManus' appearance and
her termination, perhaps the court would have recognized McManus' claim
that she had been replaced by an African American whose dress was more
typical of corporate America.' 85
EEOC v. Sambo (N.D. Ga. 1981)

The Equal Employment Opportunity Commission brought a Title VII
action on behalf of Mohan Singh Tucker, alleging that the defendant,
Sambo's Restaurant, rejected his application for a restaurant managerial
position on the basis of his religion. 16 Tucker, who was forbidden by his
religion to shave his facial hair, could not comply with Sambo's grooming
and appearance standards, which banned managerial personnel from having
facial hair.87 After informing the company's recruiter that he would not
comply with the grooming standards, Tucker's application was rejected."'
In analyzing the religious discrimination claim, the court noted that if
Sambo were to relax its grooming standards, it would negatively affect the
179. McManus, 748 A.2d at 956-57.

180. Id. at 954.
181. Id. at 952-54.
182. Id. at 952.
183. Id. at 957.
184. Id.
185. Id.
186. EEOC v. Sambo's of Ga., Inc., 530 F. Supp. 86, 88 (N.D. Ga. 1981).
187. Id.
188. Id. at 88-89.
restaurant's public image and possibly offend customers.18 9 The court also
noted that it is the norm to be clean-shaven in restaurants like Sambo and
such policies are necessary to attract customers.'9 0 Implementation of the
policy reflects the view that consumers have a preference for restaurants
where employees are clean-shaven. This preference may be attributed to
negative feelings elicited when customers deal with bearded people, a
concern about unsanitary conditions, or personal standards of cleanliness
and hygiene. 9' The court stated, "customer preference is [not] an
insufficient justification as a matter of law." 192 Although the court found
that a disparate impact claim did not apply to religious discrimination
cases, it stated that even if it were applicable, there was no evidence
demonstrating that Sambo's grooming policy had a disparate impact on
Sikhs or other religions that forbid the shaving of facial hair. 193 In essence,
the court validated customer preference as a justification
94
for the employer's
decision to penalize Tucker for his religious beliefs. 1
The court also noted that allowing exceptions to this policy might
make it difficult to enforce grooming standards against other employees
and affect employee morale and efficiency.' 95 Moreover, relaxing the
policy might cause the restaurant to risk noncompliance with sanitation
regulations. The court commented that sanitation is a justifiable concern in
the food industry and therefore, a grooming policy like Sambo's might be
necessary.196 Therefore, as the grooming policy was tailored to Sambo's
business needs, related to job performance, and necessary to the operation
of the restaurant, the court concluded that Sambo's approach to compliance
with the sanitation
97
unit's guidelines regarding facial hair was reasonable
and justified. 1
CurrentState of the Law

A review of the cases involving dressing and grooming policies
impacting race and religion indicates that courts generally hold that an
employer's dressing and grooming policy do not violate Title VII as long
they do not regulate an immutable characteristic and are applied equally to
all employees. Furthermore, the cases demonstrate that courts not only tend
to give employers a considerable amount of discretion in deciding how to
run their businesses, but that they also view dressing and grooming policies
189. Id. at 90.

190. Id.
191. Id.
192. Id. at 91.
193. Id. at 93.
194. Klare, supranote 29, at 1413.
195. Sambo's, 530 F. Supp. at 90.
196. Id. at 89-90.
197. Id. at 90.
as having a minimal effect on job opportunities.
Dressingand Grooming PoliciesImpacting Gender

Instead of providing protection for women and those who do not
conform to traditional gender roles, the manner in which courts interpret
Title VII to analyze gender related appearance claims arguably perpetuates
gender stereotypes and naturalizes socially constructed gender
differences.'" By relying on community norms in ascertaining the
requirements of Title VII, courts end up enforcing prevailing prejudices.1 99
This is problematic because "[c]ommunity norms are too discriminatory to
provide a satisfactory benchmark for workplace equality. 200
Professor Karl Kare argues that when it comes to gender related
appearance policies, courts allow certain forms of gender discrimination
under three common rationales: (1) community standard-based dress codes
are not that onerous and do not hinder employment opportunities, (2) the
courts must defer to employer discretion in order to increase efficiency, and
(3) gender-based appearance requirements are not discriminatory, as each
sex is held to standards that reflect community expectations. 20 ' Although
these rationales are often assumed as a given, these arguments are
unpersuasive because they perpetuate stereotypical notions of gender and
202
appearance.
Lanigan v. Bartlett (W.D. Mo. 1979)

Plaintiff Data La Von Lanigan brought a sex discrimination action
under Title VII against defendant Bartlett based on a dress code policy
forbidding women from wearing pants in the executive office. 20' At the
outset, the court noted, "nothing in Title VII prohibits an employer from
making decisions based on factors such as grooming and dress.,, 204 The
court dismissed Lanigan's argument that prohibiting women from wearing
pants perpetuates the stereotype that men are more competent than
women, 2 5 placing more emphasis on the fact that wearing a pantsuit was
not a fundamental right and that Lanigan was physically able to comply
with the employer's policy. 20 6 While Lanigan argued that the employer
failed to offer a valid business justification for its dress policy, the court
stated that Bartlett did not have to defend its policy because Lanigan had

199. Id. at 1418.
200. Bartlett, supra note 25, at 2544-45.
202. Id. at 1419-20.
203. Lanigan v. Bartlett & Co. Grain, 466 F. Supp. 1388, 1389 (W.D. Mo. 1979).
204. Id. at 1390.
205. Id. at 1391.
206. Id. at 1390-91.
not presented a prima facie case of discrimination .2' The court firmly
stated, "[a]n employer is simply not required to account for personal
20
preferences with respect to dress and grooming standards., ' The court
also noted that the dressing policy at issue, like policies requiring certain
hair lengths, has more to do with an employer's choice of how to manage
its business rather than equal employment opportunities.209 As such,
employers may rightfully implement policies that project a certain image.
This case illustrates the extent to which courts rely on community
norms in ascertaining what Title VII requires. When it comes to employer
dressing and appearance requirements, courts are willing to uphold
requirements that impose burdens on women that are different from those
imposed on men as long as the rules are based on well-settled community
norms. 210 Based on such norms, courts ascertain whether dressing and
appearance policies have a significant impact on employees, are "neutral"
in that they hold both males and females to a standard of what the
community expects of each sex, or are integral to the employer's legitimate
business goals.2' However, employer regulations requiring women to wear
skirts are not neutral, but are instead based on stereotypes that regard
women as sexual objects who are less capable than men and better suited
for less assertive positions.2 2 Thus, the courts' use of community norms
often results in the legitimization of gender stereotypes and many of the
biases Title VII was designed to eliminate.
Carrollv. Talman FederalSavings & Loan Association of Chicago (7th

Cir. 1979)
Mary Carroll brought a Title VII action on behalf of herself and other
similarly situated female employees against defendant Talman Federal
Savings and Loan Association for the defendant's allegedly discriminatory
23
dress code policy. The dress code required only female employees to
wear uniforms. The court upheld Carroll's claim, and found immaterial the
arguments that the uniforms were not unattractive or uncomfortable, that
the uniforms did not deter female employees from enjoying their jobs, and
that the uniforms were even preferred by some female employees. 21 4 The
majority also pointed out that Carroll had introduced less discriminatory
alternatives to Talman's dress codes. 215 Although it is acceptable for
207. Id.
208. Id. at 1392.
209. Id.
211. Id.
212. Id.
213. Carroll v. Talman Fed. Sav. & Loan Ass'n., 604 F.2d 1028, 1029 (7th Cir. 1979).
214. Id. at 1037 (Pell, J., dissenting).
215. Id. at 1031 (majority opinion).
employers to require uniforms, the dress codes must be applied equally to

all similarly situated employees. 1 6 The majority was hesitant to examine
the reasonableness of an employer's appearance policy. 2 7 Normally
appearance standards dictated by employers that differ for men and women
do not violate Title VII if they are justified by "commonly accepted social
norms and are reasonably related to the employer's business needs. 21 8 In
this case, however, the court found that two sets of employees doing the
same work were subjected to different dress policies based on their sex, a
practice that was not justified by a business necessity. 1 9
Furthermore, the court found that Talman's policy degraded women
by implying that women do not have the same professional status as their
male counterparts. 2 2° The court concluded that Talman's justifications for
the policy were based on offensive stereotypes about women and their
selection of work clothing. 22 Although it was not wrong for the employer
to acknowledge different dress norms for men and women, it was wrong
for the employer to compel women to wear employer-identified uniforms
and assume that women, unlike men, could not be trusted to make good
judgments in deciding what to wear to work.222
Craft v. Metromedia, Inc. (8th Cir. 1985)

Craft claimed that defendant Metromedia discriminated against her on
the basis of her sex, in violation of Title VII, by scrutinizing her appearance
221
and assigning her to a diffeient job because of her looks. Craft's main
assertion was that Metromedia's "appearance standards were based on
stereotypical characterizations of the sexes and were applied to women
more constantly and vigorously than they were applied to men. 2 24 The
court affirmed the district court's finding that the evidence demonstrated
only that Metromedia was "concerned with the appearance of all its on-air
personnel and that it took measures appropriate to individual situations,
characteristics, and shortcomings. 2 5
Craft also argued that even if Metromedia applied the appearance
standards in an evenhanded manner, the standards were discriminatory in
themselves. 2 6 She claimed that she had to conform to a stereotypical image
216. Id.
217. Id.at1032.
218. Id.
219. Id.
220. Id. at1033.
221. Id.
222. Id.
223. Craft v. Metromedia, Inc., 766 F.2d 1205, 1207 (8th Cir. 1985).
224. Id. at 1210.
225. Id. at 1213.
226. id. at 1214.
of how female anchors should look. 2 7 The district court held that the
appearance standards were not discriminatory per se because both men and
women were required to maintain a professional, business-like appearance
consistent with community standards. 228 Such requirements were critical to
Metromedia's economic well-being. Unlike the dress requirements
previously found to violate Title VII-which involved demeaning
stereotypes about female characteristics and abilities, stereotypical notions
of female attractiveness, or female sexuality that is used to attract
business-the
230
criteria here did not implicate the primary thrust of Title
VII.
The court further noted that grooming policies fall within the domain
of an employer's discretion because an employee's appearance can impact
a company's image and success. 2 1 The court acknowledged that it was not
the appropriate forum to debate the relationship between newsgathering
and dissemination on the one hand, and considerations of appearance and
presentation in television journalism, on the other.232 The court concluded
that the district court did not err in deciding that the defendant's appearance
standards were based on neutral professional and technical considerations
rather than stereotypical notions of female roles and images. 33
While subjecting women, more than men, to attractiveness
requirements may be unlawful, the Craft case illustrates that attractiveness
requirements have not been eliminated. 234 Employers may freely impose
attractiveness requirements on women as long as members of both sexes
are supposedly regulated.235 In the television industry, both men and
women are judged based on their appearance, but such standards are likely
higher for women.236 The court in this case allowed Metromedia to evaluate
Craft according to viewer surveys that included stereotypical notions of
beauty and appropriate behavior for men and women. 2 " However, while
the court purported to compare the burdens imposed by dress and
appearance standards on male and female employees, it relied 38
on viewer
surveys as objective evidence to justify Craft's termination.
Klare argues that employer policies requiring attractiveness and a
pleasing appearance are incapable of gender neutrality in our society
227. Id.
228. Id.
229. Id.
230. Id. at 1215.
231. Id.
232. Id.
233. Id. at 1215-16.
235. Id. at 1424.
236. Id.
237. Id.
because such categories are based on stereotypical expectations and

judgments about women.23 9 The Craft case reveals how the law reinforces
appropriate standards for women's appearance and how notions of beauty
can impact employment opportunities. 2 4 The court affirmed that Craft's
appearance, which was arguably unrelated to the essence of her job, was a
valid basis for the adverse employment action taken against her.241
Jespersen v. Harrah's OperatingCo. (9th Cir. 2006)

Plaintiff Jespersen was terminated from her position as a bartender in
Harrah's casino because she refused to comply with Harrah's grooming
policy, which required female employees to wear facial makeup. 242 She
claimed that Harrah's grooming policy was discriminatory because it
subjected women to terms and conditions of employment which men were
not similarly subjected to, and further, that it required women to conform to
sex-based stereotypes as a term and condition of employment. 24 ' The
district court granted summary judgment to Harrah's, holding that the
grooming policy equally burdened male and female bartenders. The district
court stated that "while women were required to use makeup and men were
forbidden to wear makeup, women were allowed to have long hair and men
244
were required to have their hair cut to a length above the collar.",
Furthermore, the district court stated that Harrah's grooming policy was not
prohibited by Title VII because it did not discriminate based on immutable
characteristics.
The Ninth Circuit agreed with the district court that Jespersen failed to
present sufficient evidence that Harrah's grooming policy unequally
burdened women. 24 ' However, the Ninth Circuit also concluded that
appearance standards might be the subject of a Title VII claim for sex
stereotyping. 246 As for the unequal burden claim, Jespersen provided
testimony that she felt degraded and demeaned by the makeup policy, but
did not establish that complying with Harrah's grooming policy would
unequally burden women. 247 As a rule, "grooming standards that
appropriately differentiate between the genders are not facially
discriminatory., 248 The issue was not whether the policies were different,
but whether the policy created an unequal burden for one gender.249
239. Klare, supranote 29, at 1425.

240. Baron, supra note 24, at 385.
241. Id.
242. Jespersen v. Harrah's Operating Co., 444 F.3d 1104, 1105-06 (9th Cir. 2006).
243. Id. at 1108.
244. Id. at 1106.
245. Id.
246. Id.
247. Id. at 1108.
248. Id. at 110.
249. Id.
With respect to Jespersen's sex stereotyping claim, the court held that
Jespersen's personal reaction to the makeup requirement, without more,
could not give rise to a claim of sex stereotyping under Title VII. 250 In
reaching this conclusion, the court noted that Harrah's policy did not single
out Jespersen, was not intended to be sexually provocative, and did not
give rise to sexual harassment."' Furthermore, there was no evidence
suggesting that the policy was implemented to make female bartenders
conform to a "commonly-accepted stereotypical image of what women
should wear" or that the grooming standards would objectively hinder a
woman's ability to perform the job. 52 The court concluded that Jespersen
failed to establish a basis for her claim of sex stereotyping, since the
evidence was limited to the reaction of one employee and there was no
evidence of any stereotyping motives on the part of the employer."'
The Jespersen case reinforces the long-standing rule that as long as a
grooming policy is universally applicable and uniformly applied, courts
will generally consider the policy acceptable regardless of its sex
214
differentiated requirements. Despite the outcome of the case, the court
ultimately created an opportunity for potential plaintiffs to bring claims of
sex stereotyping on the basis of dress or appearance codes. Although
Jespersen did not provide sufficient evidence for such a claim, the court
indicated that it would have been more inclined to permit the claim if there
had been evidence that the employer was motivated by stereotypical
images of women in adopting such a policy, if the grooming policy
objectively inhibited a woman's ability to do the job, or if the policy
subjected women to any form of alleged harassment. 255
Although the court's holding may potentially provide relief for
individuals who are adversely affected by appearance policies, the standard
for determining when such a policy constitutes sex stereotyping may be
difficult to meet. For example, the court did not consider Jespersen's
testimony that Harrah's makeup requirement prohibited her from doing her
job because it affected her self-dignity, which may provide an example of
"objectively" inhibiting a woman's ability to do the job.256 Furthermore, it
is possible that Harrah's implemented the grooming policy, in part, to make
female bartenders conform to a stereotypical notion of how women should
dress and groom. As Judge Pregerson's dissent in Jespersenpoints out, the
makeup requirement shows that Harrah's regarded "women's faces [as]
250. Id. at 1112.

251. Id.
252. Id.
253. Id. at 1113.
254. Id. at II10.
255. Id. at 1113.
256. Id. at 1112.
ASIAN AMERICAN LA W JOURNAL [Volume 14:165
incomplete, unattractive, or unprofessional without full makeup."257

'
CurrentState of the Law

The previous cases demonstrate that courts tend to find dressing and
grooming policies impacting gender acceptable if (1) they regulate mutable
characteristics, (2) are applied to both sexes, and (3) contain requirements
that reflect generally accepted community standards of dress and
appearance for each sex. Furthermore, courts generally conclude that such
policies have more to do with an employer's choice of how to run the
business than with equal employment opportunity. However, if a dressing
and grooming policy is only imposed on one sex, courts are likely to find
such a policy objectionable. The most problematic feature of the current
state of the law with respect to such appearance policies is the courts' blind
reliance on commonly accepted social norms that reflect patriarchal and
sexist values.
PART V
PROPOSALS FOR REFORM
Recognizing the doctrinal hurdles posed by current legal theories and
the courts' problematic resolution of challenges to discriminatory
appearance regulations, scholars have proposed a number of reforms to
provide relief for adversely affected employees. Such reforms include
altering the way courts evaluate community norms, implementing new
forms of liability under Title VII, fashioning a private right to appearance
autonomy, and reconstructing the labor market. Although the suggested
reforms are individually appealing, it is clear that any effective strategy to
combat the adverse effects of discriminatory appearance policies will
require the collaborative efforts of courts, employers, and society.
Courts
Acknowledging InstitutionalConstraintson Courts

While it is imperative to change the way courts currently handle
appearance discrimination claims, proposed reforms must take into account
constraints that courts face when examining employer appearance policies
that adversely affect certain groups. In order to address institutional
restraints on the courts' power, Kenji Yoshino argues that legal remedies
must move away from claims that "demand equality for particular groups
toward claims that demand liberty for us all., 258 His argument rests on the
prediction that in light of our increasingly diverse society, future courts will
257. Id. (Pregerson, J., dissenting).

have institutional limits preventing them from vindicating group-based

civil rights. 259 For example, in 2004 when the Supreme Court held that
Congress could compel a state to make its courthouses wheelchair-
accessible, instead of structuring its analysis in group-based rights, the
Court argued that "all ' 260
people-disabled or otherwise-have a 'right of
access to the courts.'
Although grounding anti-discrimination law in terms of liberty helps
address the impact of demands to cover, employers also have liberty
interests via the state in running their businesses as they choose and not
having the government dictate with whom they can associate. Thus, any
advantages of a liberty-based right to be free from discrimination must also
be weighed against employers' liberty interests. On the other hand,
grounding the right to be free from discrimination in equality, as opposed
to liberty, has the strategic advantage of trumping other rights. 262
Community Norms
Although many scholars who criticize the manner in which courts
evaluate employer appearance regulations have proposed either avoiding
the use of community norms to rationalize discriminatory appearance codes
or eliminating appearance rules entirely to emphasize personal
autonomy, 263 Bartlett argues that it is neither possible to assess appearance
policies in a vacuum nor wise to abolish dress and appearance codes
entirely. 264 She suggests that courts should pay more attention to
community norms by recognizing the cultural meanings inspiring such
norms and assessing whether they disparately burden certain groups, 265
rather than using them as neutral, external standards that validate most
restrictions..266 Her argument rests on the premise that the law and
community norms constantly interact with one another. In light of this
dynamic relationship, she recommends incorporating, rather than
discarding, community norms in efforts to reform how the law addresses
,. •261
appearance policies.
Furthermore, combating discriminatory dress and grooming codes by
prohibiting such policies entirely is not effective. For example, Bartlett
argues that eliminating dress codes will not necessarily translate into
increased autonomy for employees, as dressing and appearance choices
259. Id.
260. Id.
261. Linda Hamilton Krieger, Employment Discrimination Lecture at Boalt Hall (Apr. I1, 2006).
262. Id.
263. See generally Klare, supra note 29.
265. Id. at 2569.
266. Id. at 2545.
267. Id. at 2546.
268. Id. at 2549.
are dependent on the culture we live in and employer dress codes are not
always formalized. Therefore, eliminating employer dressing and grooming
codes will not bring about an increase in employee autonomy as dressing
and appearance expectations are pervasive,
69
deeply entrenched, and endure
even in the absence of mandatory codes.1
Bartlett's suggestion that courts should scrutinize and evaluate
community norms, rather than avoid using them entirely is persuasive, as
evaluating appearance policies without referring to community norms
seems implausible. Furthermore, by focusing on the meanings and
assumptions underlying such norms, courts can play an active role in
eradicating harmful and discriminatory norms.
Title VIl's Anti-Retaliation Provision

Professor Terry Smith suggests that Title VII's anti-retaliation
provision can be used to protect minority employees who resist subtle
forms of discrimination in the workplace by refusing to conform to
discriminatory workplace norms. 2 10 Section 704, Title VII's anti-retaliation
provision, states the following:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicants for employment
... because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding or
hearing under this subchapter.271
While this provision protects individuals who oppose lawful
employment practices that they believe in good faith are unlawful, the
court's analysis of the reasonableness of individual beliefs is based on its
evaluation of the underlying § 703 unlawful discrimination claim.27' An
employee who claims she was adversely affected by her employer's
application of white norms has a slim chance of winning under § 703.
Thus, Professor Barbara Flagg argues that it is imperative to assess
reasonableness in a race-conscious manner. 273 A race-conscious analysis
will more likely view a minority's decision not to conform to workplace
norms as motivated by racial factors than by choice. 274
Flagg acknowledges that not all claims will receive protection under
Title VII's anti-retaliation provision. Generally, opposition behavior must
occur in response to some specific employer practice, and the employer has
269. Id. at 2551.

270. Terry Smith, Everyday Indignities: Race, Retaliation, and the Promise of Title VII, 34
COLUM. HUM. RTS. L. REV. 529 (2003).
271. 42 U.S.C. § 2000e-3(a).
272. Barbara J. Flagg, Subtle Opposition, 34 COLUM. HUM. RTS. L. REV. 605 (2003).
273. Id. at 610.
274. Id.
to be aware of the oppositional conduct and take adverse action in response

to such conduct.2 75 Flagg contends, however, that subtle forms of
opposition should be protected under Title VII's anti-retaliation provision
because they are consistent with the underlying goals of the provision,
insofar as they promote dialog and resolution of discriminatory practices.276
While Flagg's proposal is innovative, most plaintiffs who refuse to
conform to discriminatory workplace norms will be unable to successfully
establish a claim under Title VII's anti-retaliation provision. Among other
things, the anti-retaliation provision makes it unlawful for an employer to
discriminate against any employee who opposes an unlawful practice.
However, courts may not view a dressing and grooming policy based on
discriminatory workplace norms as constituting an unlawful practice unless
one can establish that the policy implicates one of the categories protected
by Title VII. Based on current case law, it would be difficult to make such
a showing.
Alternative Theories of Liability Under Title VII

In addition to endorsing Title VII's anti-retaliation provision to
combat discriminatory workplace norms, Flagg introduces a doctrinal
framework that would address forms of workplace discrimination based on
white subjective decision-making under Title VII. 2 77 She argues that Title
VII should be interpreted to encompass claims based on white subjective
decision-making, but the disparate impact and disparate treatment forms of
278
liability are not adequate in countering such forms of discrimination.
Thus, she proposes two revised models of Title VII liability that would
reach white subjective decision-making and achieve the statute's goals
more effectively-the
79
foreseeable impact model and the alternatives
2
model.
The foreseeable impact model, which resembles the structure of the
current disparate impact analysis, emphasizes foreseeable rather than actual
disparate effects. 28° To prove foreseeable disparate effects, for example, the
plaintiff might show how the allegedly discriminatory criterion is
associated with whites more than other racial groups and that whites view
the criterion positively. 281' Flagg suggests that the foreseeable impact
approach avoids barriers that plaintiffs face under the current disparate
impact theory. 2" For example, the foreseeable impact model does not
275. Id.at 612.

276. Id.
277. Flagg, supra note 111.
278. Id. at 2015.
279. Id. at 2038.
280. Id.
281. Id. at 2040.
282. Id. at 2038.
require proof of actual disparate effects and, therefore, diminishes the

issues of causation and choice while focusing on the uneven distribution of
characteristics rather than on the individual."' Under the foreseeable
impact model, business necessity remains an affirmative defense if
assimilation is needed to maintain the "essence" of the business.28 4 While
the foreseeable impact model is appealing in many respects, its emphasis
on alleged differences between whites and other racial groups risks
implying minority inferiority."'
On the other hand, the alternatives model approach would "capture the
structural nature of discrimination" in the workplace more directly than the
disparate impact framework.2 86 Under this approach, the plaintiff would
examine the racial composition of her workplace and attempt to
demonstrate that her workplace is predominately white, or that whites fill
most of the positions of authority.287 Such a showing could help reveal that
288
the alleged discriminatory action was based on white decision making.
The employer would then have to identify the decision making criteria and
the goals they serve. 289 Permissible goals would include financial motives,
but exclude customer preferences that impact categories protected under
Title VII. 290 The plaintiff would have the ultimate burden of introducing
alternative criteria that would achieve the employer's stated goals and the
employer would have an opportunity to show that the employee's proposed
alternatives would be unreasonable. 291 The alternatives impact approach
would allow the plaintiff to introduce evidence from which disparate
impact could be inferred 292 and then propose less disadvantageous
alternatives that would accomplish the employer's objectives, without
addressing business necessity. 293 Possible alternatives include diversity
294
training and changes in decision making authority. While the alternatives
model is attractive because it provides a structural solution to a structural
295
problem, the model may intrude on employer autonomy, as its
"presumption of race specificity" makes it easier for employers to be found
liable for decisions that are in fact race-neutral.2 96
Flagg's proposed models of Title VII liability have their strengths and
283. Id. at 2041.

284. Id. at 2042.
285. Id. at 2043.
286. Id. at 2044.
287. Id.
288. Id.
289. Id.
290. Id. at 2046.
291. Id. at 2044.
292. Id. at 2045.
293. Id. at 2044.
294. Id. at 2047.
295. Id. at 2047-48.
296. Id. at 2048.
20071 THE NAKED TRUTH
weaknesses. The foreseeable impact model maintains employer autonomy,

but attributes differences to certain racial groups. While the alternatives
model provides a direct structural response to a structural problem, it
infringes on employer privileges. Even though Flagg's proposals are not a
perfect solution to the problem at hand, they are an improvement on the
courts' current forms of analysis.
Employers
Labor Market Reconstruction

Klare argues that bargaining within the labor market is preferable to
judicial decision-making because it produces more flexible outcomes and
involves greater employee participation .2' Klare introduces the labor
market reconstruction theory as a promising approach to tackle
discriminatory appearance regulations.'" He argues that although
appealing, the "right" to appearance autonomy, which has been proposed to
counter discriminatory appearance policies, is problematic. 99 The right to
appearance autonomy is very general and thus, subject to judicial
interpretation of its meaning and of the scope of its protections.300 Judicial
interpretation of rights-based challenges to employer appearance policies is
also unlikely to be consistent with the views of those who initially
proposed the rights approach, as judges may not be sensitive to the adverse
impact of dressing and grooming policies on certain racial and gender
groups.301
Market reconstruction would work in tandem with the rights-based
approach, giving employees more control over their appearance choices by
increasing their bargaining power over appearance, dress, and grooming
policies. 3° This could be accomplished by implementing new employee
bargaining policies to "redistribute power in a modest but meaningful way
from men to women, from employers to employees, from dominant groups
to racial and religious minorities."30 3 Democratization of the workplace
may also transform the workplace into a forum for reevaluating stereotypes
about members of certain racial, gender, and religious groups, thereby
creating an atmosphere in which employees can discover more about
themselves and their co-workers. 3 4 Klare also proposes giving employees
nonwaivable appearance-related protections as a way to increase employee

298. Id. at 1446.
299. Id. at 1444-45.
300. Id. at 1446.
301. Id.
302. Id. at 1446-47.
303. Id. at 1438.
304. Id. at 1443.
bargaining power over appearance regulations.0 5 For example, employers

would be prohibited from using appearance as a basis for discriminating
against or firing an employee. 3°6 However, an employee could waive her
right to appearance autonomy in exchange for higher wages,30 7 in which
case the employer would retain power to set forth the parameters of the
appearance policy, enforcement procedures, and penalties for
noncompliance with the policy.
The labor market reconstruction theory applies principles of
traditional market theory to the employment context and assumes that
market forces will produce an efficient outcome. For instance, under the
labor market reconstruction theory, an employee has the freedom to choose
between receiving a higher wage or appearance autonomy and it is assumed
that the market will produce the best result. However, like traditional
market theory, the labor market reconstruction theory may rely on faulty
assumptions that all participants have rational expectations, that they
update their expectations, and that they receive and act on all relevant
information as soon as it becomes available. Another problem with the
labor market reconstruction theory is that employers may simply avoid
bargaining and paying higher wages to those who give up their appearance
rights by either hiring employees who are willing to abide by the
employer's preferences or by hiring employees who voluntarily waive their
appearance autonomy rights without demanding higher wages.
Altering OrganizationalStructures
As another means to combat appearance-based discrimination in the
workplace, Green suggests altering legal discourse to recognize work
culture as a potential source of discrimination and to pressure employers
into modifying organizational structures that play a role in molding work
culture. 3° Discriminatory work culture is influenced by a combination of
factors, including cognitive and motivational biases of employees,
structural and institutional choices made by the organization, and allocation
of power within the organization.309
While many scholars have proposed a rights-based approach to
counter workplace discrimination and demands to assimilate, Green
criticizes the rights-based or identity harms approach for requiring "a legal
determination that certain behaviors or traits are central, essential, or
integral to a protected individual's identity."3 1 She argues, "[p]lacing a
legal imprimatur on particular behavior differences in isolation is likely to
305. Id. at 1447-48.

306. Id. at 1448.
307. Id.
309. Id. at 648-49.
310. Id. at 653.
lead to group-based categorization, entrenched stereotypes, and

connotations of inferiority."3 1' Furthermore, social relations formed at work
are too valuable to be regulated by deferring to judicial interpretation and
transforming relational dynamics.312 Allowing a private right of action
would leave courts with the job of identifying legal and illegal conduct on a
case-by-case basis and would lead to increased efforts by employers to
regulate employee social relations.3" 3
Identifying work culture as a source of discrimination, on the other
hand, has two advantages. First, it incorporates identity harms as well as
other harms without forcing the law to recognize certain traits as central to
a particular group's identity.3 1 4 Also, it will help change the way courts
currently evaluate discrimination claims, as courts fail to capture the effects
of work culture on the personal choices of women and people of color.3" 5
In light of the fact that an "employer's organizational choices can both
facilitate and constrain the development of discriminatory work
cultures,"'31 6 Green argues that employers should attempt to change how
employees interact in the workplace "so that demands to conform to work
culture are not demands to conform to a white, male norm."3'17 She suggests
creating a scheme through which courts would require employer
compliance with a legal mandate to eliminate discriminatory work
cultures."' Regulation on the employer's part would involve "[a]ttention to
patterns of bias and relational dynamics, inquiry into organizational
influences on intergroup inequities, and context-specific
31 9
efforts to reshape
potentially discriminatory work cultures." '
Allowing employers and third parties to reshape potentially
discriminatory work cultures may seem risky, but the nature of workplace
discrimination requires a complex solution that outsiders would have
difficulty developing.12 Furthermore, such risks can be minimized with
appropriate oversight and assessment of employer reforms.12 1 On the other
hand, this approach, which entails reshaping discriminatory work cultures
with the assistance of court supervision, may not be practical because
courts tend to have limited resources and are not necessarily the best forum
for making such determinations.
311. Id. at673.

312. Id. at665.
313. Id. at 667.
314. Id. at 653 (citing Richard Ford, "Beyond Difference": A Reluctant Critique of Legal Identity
Politics, in LEFT LEGALISM / LEFT CRITIQUE 38, 53 (Wendy Brown & Janet Halley eds., 2002)).
315. Id. at 664.
316. Id. at 650.
317. Id. at 672.
318. Id. at 674-75.
319. Id. at 674.
320. Id. at 675-76.
321. Id. at 676.
Society
The law, by itself, represents an incomplete solution to appearance-
based assimilation demands because many individuals do not fit within
traditionally protected categories of race, gender, and sexual orientation.322
Given that the law gains meaning within its social context and social actors
play an important role in shaping the meaning of the law, Yoshino argues
that the solution to coerced assimilation lies in each one of us.323 As a
society we have to look for the reasons why demands to cover are
universally made. 324
Because discrimination is embedded in our culture, any solution to
discriminatory appearance policies necessarily entails a transformation of
our social and cultural values. Not only does society need to examine
stereotypes and attributional biases associated with appearance, but it also
needs to recognize and address the subtle forms of discrimination lurking in
the modem workplace. Norms that adversely affect racial, gender, sexual
orientation, and religious identities in society can also structure workplace
culture. As a society, we need to acknowledge that modem forms of
discrimination against non-conforming individuals are just as harmful as
past forms of discrimination, which resulted in the stigmatization of entire
groups, such as racial and religious minorities, women, gays, and the
disabled."' Society must scrutinize the demands to conform to
discriminatory workplace norms and ascertain which grounds, if any,
justify such demands. 326 Increasing societal involvement in meaningful
reform will have the added benefit of boosting society's stake in the
eradication of discriminatory appearance policies. Social movements
acknowledging the discriminatory potential of workplace appearance
norms may also compel courts to interpret Title VII in a manner that
reinforces, rather than undermines, the transformative nature of the act.
Changing social and cultural values and questioning established
workplace norms are not easy tasks. However, small steps towards
increasing society's role in combating appearance-based discrimination are
possible. First and foremost, we must increase awareness of the
attributional biases associated with appearance. Perhaps this could be done
through education in the classroom setting, particularly at an early age. We
must also initiate campaigns, broadcasted through television or other forms
of media, to promote diversity and tolerance of different modes of dress
and grooming tied to certain racial, religious, and gender groups. Finally, it
is important that we congregate in public and political arenas to discuss and

323. Id.
324. Id.
325. Id. at 33.
326. Id. at 38.
challenge discriminatory workplace regulations and their damaging effects.
CONCLUSION
The first step toward protecting individuals adversely affected by
employer-imposed appearance policies is to recognize the discriminatory
potential of those policies, particularly those that serve as proxies for
discrimination based on suspect categories such as gender and race. Such
recognition will necessarily entail changing the way courts interpret legal
doctrine, unraveling societal norms that form the basis of appearance
standards, and creating incentives for employers to reshape potentially
discriminatory work cultures to make them more inclusive.
By taking the foregoing strides, we as a society can stand behind our
commitment to equality. By developing a more comprehensive scheme for
eliminating discrimination in the workplace that acknowledges all people's
rights irrespective of their race or gender, we can ensure that all identities
are valued and recognized. Individuals who have been subjected to
appearance-based discrimination deserve protection, as such discrimination
is arbitrary, irrational, and has damaging implications. However, in light of
reasonable employer interests, not all appearance policies can be per se
illegal. Thus, appearance policies that allow employers to implicitly
discriminate against employees based on suspect categories such as race,
religion, sex, and national origin should be the primary focus of regulation.

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because it serves as a proxy for other forms of discrimination that are

3. See Dion, Berscheid & Walster, supra note 1.

competence, were attributed to the attractive individuals, whereas less

14. Katz, supra note 10, at 308.

From an economic standpoint, employers have incentives to hire

Dressingand Grooming Policies

22. Bello, supra note 11, at 496-97.

employment context are problematic on several levels. Appearance

Irrelevant to Job Performance

Express Certain Assumptions and Prejudices

37. Id. at 647-48.

46. Id. at 312.

of female sexuality; these regulations also punish deviance from male

Adverse Impact on Employees

56. Id. at 1398.

expectations preserve the existing social, political, and economic

67. Kare, supra note 29, at 1411.

racism is now rejected and looked down upon, society 8

Functions and Consequences of Appearance Regulations

80. Id. at 36.

promotion, prevents employers from pursuing homogeneity in the

91. Id. at 1791.

cultural norms. 99 As a result of assimilation bias, courts often minimize the

Inadequaciesof Current Forms of Title VII Liability

99. Carbado & Gulati, supra note 85, at 1822-23.

106. Id. at 656.

make among people within a particular racial group."" 3

113. Id. 1792.

of the business. 122

are capable of avoiding discrimination by changing those traits. "9Such an

is an excessive judicial reliance on community norms in determining what

Dress and GroomingPolicies ImpactingRace and Religion

140. Bartlett, supra note 25, at 2543.

assimilation bias on courts' interpretation of Title VII, and the courts'

Rogers v. American Airlines (S.D.N. Y 1981)

Hollins v. Atlantic Co. (6th Cir. 1999)

161. Id. at 233.

McManus v. MCI Communs. Corp. (D. C. Cir. 2000)

EEOC v. Sambo (N.D. Ga. 1981)

179. McManus, 748 A.2d at 956-57.

CurrentState of the Law

189. Id. at 90.

as having a minimal effect on job opportunities.

Dressingand Grooming PoliciesImpacting Gender

Lanigan v. Bartlett (W.D. Mo. 1979)

198. Klare, supra note 29, at 1415.

Carrollv. Talman FederalSavings & Loan Association of Chicago (7th

employers to require uniforms, the dress codes must be applied equally to

Craft v. Metromedia, Inc. (8th Cir. 1985)

because such categories are based on stereotypical expectations and

Jespersen v. Harrah's OperatingCo. (9th Cir. 2006)

239. Klare, supranote 29, at 1425.

250. Id. at 1112.

incomplete, unattractive, or unprofessional without full makeup."257

CurrentState of the Law

Acknowledging InstitutionalConstraintson Courts

257. Id. (Pregerson, J., dissenting).

have institutional limits preventing them from vindicating group-based

Title VIl's Anti-Retaliation Provision